Bangalore District Court
India Limited Formerly vs Signature on 28 February, 2015
In the court of the XXI Addl. Chief Metropolitan
Magistrate Bangalore City
DATED THIS THE 28th DAY OF FEBRUARY 2015
PRESENT: Sri. DHARMAGIRI RAMASWAMY
M.A., LL.M.
JUDGMENT
1. Sl. No. of the Case : C.C.No.10575/03
2. The date of : 23.06.2003 commission of offence
3. Name of the : M/S. Bayer Cropscience Complainant India Limited Formerly known as AVENTS CROPSCIENCE INDIA LIMITED Agrevo India Limited Having its Reg.Office at:
"AVENTS CENTRE' No.54-A, Mathuradass Vasannji road, Andheri Kurla road, Andheri East, Mumbai 400 093.
Regional office at:
"SHRESHTA BUMI', No.87, K R Road, No.206, & 207 II Floor Bangalore -04.
R/by its Regional Controller Mr.K.Thiagarajan, P.A.Holder
4. Name of the Accused : M/s. Bharat Krushi SSEVA KENDRA, Proprietorship concern, address at:
Anjangaon, SURJI- 444705, 2 C.C.NO.10575/2003 SCCH-25 Amaravathi District MAHARASHTRA R/by Proprietor Pradeep Gnanehawar Deshmukh
5. The offence : U/s.138 of Negotiable complained of or Instruments Act proved
6. Plea of the Accused : Pleaded guilty
7. Final order : Dismissed
8. Date of such order : 28.02.2015.
JUDGMENT The Complainant has filed case against the accused alleging that, the Accused have committed an offence punishable under section 138 of Negotiable Instruments Act.
2. The brief fact of the Complainant case is as under:
The complainant is a company registered under the companies Act is carrying a business of manufacturing and distribution of the agro-chemicals. The accused is a proprietor of Bharath krishi Seva Kendra, carrying retailer shop at Anjangaon. The Accused has placed an order for the supply of Agro-chemical product. Considering their order the complainant has sent material to the accused. The accused has 3 C.C.NO.10575/2003 SCCH-25 acknowledge the same and promise that, payment will made in due course as per the company's act. As per the order, materials supplied, the payment due in receiving, party shall pay the interest @ 24% p.a. But accused failed to clear the payment of material. On request 25.11.2002 the accused had issued a cheque of Rs.1,00,000/- bearing No.2952623 drawn on Khamgaon Urban co-operative Bank Ltd., Itwar Bazar Branch, Amaravathi. In the month of February 2003 the cheque was present for encashment. The cheque was dishonored with intimation "Funds Insufficient" on 18.03.2003. On 14.04.2003 the notice was issued to the accused for alternative payment through RPAD/UCP. The accused failed to pay the cheque amount. Thereby the accused have committed offenses punishable u/s 138 of N.I.Act. It is thus, the present complaint is filed against the proprietor of the Bharath Krishi Sevakendra, Anjangaon, Surji, Amaravathi (D), Maharastra(S). The then the brother officer took cognizance and summons to the accused. Accordingly Gunashekar Narayan Deshmukh appeared before this court and got bail. During the pendency of the case Gunashekar Narayan Deshmukh and proprietor of 4 C.C.NO.10575/2003 SCCH-25 Bharath Krishi Seva Kendra was died then as per order dated 11.06.2007 Pradeep Gunashekar Deshmukh brought on record as accused. The accused got bail, prosecution paper furnished to the accused as per section 207 of Cr.P.C. Plea was recorded, read over and explained to the accused. The accused pleaded not guilty and claim to be trial.
3. In order to prove their case the complainant official examined as PW.1 by name K.Thiagaraj and got marked 6 documents under Exs.P.1 to P.6 and one more witness examined as PW.2 and got marked 8 documents under Exs.P.7 to P.14. After retirement of PW.1 Ramesh Iyer was examined as PW.1. Whereas the Accused Pradeep Dehsmukh examined as DW.1 and got marked 2 documents under Exs.D1 & D.2 and closed their side.
4. I have heard the arguments advanced by the learned counsel for the Complainant as well as Accused.
5. The following points that arise for my consideration are as under:
1) Whether the prosecution/Complainant proves that, the accused have committed 5 C.C.NO.10575/2003 SCCH-25 for the offences punishable under section 138 of N.I.Act?
2) To What order?
6. My findings on the above points are as follows:
Point No.1: In the negative Point No.2: As per the final order for the following REASONS
7. Point No.1:
PW.1 stated in his evidence dated 12.01.2005 that, the complainant is carrying a manufacturing and distribution of world class insecticides and pesticides and other agro- chemicals. The accused Bharath Krishi Seva Kendra represented by Deshmukh is carrying a retail business and placed an order. As per order the complainant has supplied related to the agro products to the accused and accused is agreed to make payment on the day of the delivery. In default the accused is willing to pay penal interest @ 24% p.a., Accordingly the accused is liable to pay an amount of Rs.26,00,000/- with interest @ 24% p.a., but failed to pay the cost of the material 6 C.C.NO.10575/2003 SCCH-25
8. On request 25.11.2012 the accused has issued a cheque bearing No.2952623 for Rs.1,00,000/-drawn on Khamgaon urban co-operative bank ltd., Amaravathi. The said cheque was present for encashment in the month of March 2003. The cheque was dishonored with acknowledgement "Fund Insufficient" on 18.03.2003. On 14.04.2003 notice was issued calling upon for alternative payment. Accused failed to pay the cheque amount. It is thus, the accused have committed offences punishable under section 138 of N.I.Act and prayed for legal action and compensation.
9. In support of his oral evidence he has filed 6 documents under Exs.P.1 to P.6. PW.1 did not turn to tender the cross-examination. PW.2 stated in his examination-in-chief that, he is the branch manager of the Khamgaon Urban Co- operative branch, Amaravathi. The accused has maintained the account bearing No.1023 in their bank. At the time of opening account the accused has furnished account opening form and specimen signature and he has identified the signature appeared on the cheque and the signature appeared on the specimen are one and the same. The said cheque belonging to 7 C.C.NO.10575/2003 SCCH-25 Pradeep Deshmukh. Further stated that, on 06.03.2003 they have received 4 cheque those are dishonored with reason "insufficient funds".
10 In support of his oral evidence he has filed 8 documents under Exs.P.7 to P.14. Further the complainant examined one Ramesh Iyer he stated in his examination-in- chief as under:
The complainant is carrying a manufacturing and distribution of world class insecticides and pesticides and other agro-chemicals. The accused Bharath Krishi Seva Kendra represented by Deshmukh is carrying a retail business and placed an order. As per order the complainant has supplied related to the agro products to the accused and accused is agreed to make payment on the day of the delivery. In default the accused is willing to pay penal interest @ 24% p.a., Accordingly the accused is liable to pay an amount of Rs.26,00,000/- with interest @ 24% p.a., but failed to pay the cost of the material
11. On request 30.11.2002 the accused has issued a cheque bearing No.2952623 for Rs.1,00,000/-drawn on 8 C.C.NO.10575/2003 SCCH-25 Khamgaon urban co-operative bank ltd., Amaravathi. The said cheque was present for encashment in the month of March 2003. The cheque was dishonored with acknowledgement "Fund Insufficient" on 18.03.2003. On 14.04.2003 notice was issued calling upon for alternative payment. Accused failed to pay the cheque amount. It is thus, the accused have committed offences punishable under section 138 of N.I.Act and prayed for legal action and compensation.
12. Whereas the accused himself examined as DW.1. He stated in his examination-in-chief that, Gnaneshwar Marauam Deshmukh who is the proprietor of Bharath Krishi Seva Kendra, Anjangao and Pradeep Deshmukh is the proprietor of Bharath Krishi Seva Kendra, Amravathi and he is not liable to pay any debt or liability to the complainant. He has filed 2 documents under Exs.D.1 & D.2 and further stated that, the complainant has not issued notice to him. He stated that, my father was arrested before this court he died on 04.12.2005. He has informed the death of his father. He has not issued any summons from this court and prayed for dismissal of the complaint with cost.
9
C.C.NO.10575/2003 SCCH-25
13. In support of his oral evidence he has filed 2 documents under Exs.D.1 & D.2. Whereas the learned counsel for the complainant submitted that, the accused has admitted signature appeared in the disputed signature. Therefore he has committed offences punishable under section 138 of N.I.Act and prayed for conviction.
In support of their oral evidence the learned counsel for the complainant relied decisions reported in AIR 2011 SC 2751 AIR 2010 SC 2946 AIR 2009 SC 568 ILR 2008 Kar 1883 AIR 2002 SC 3014 AIR 2001 SC 3897 and prayed for conviction. Whereas the learned counsel for the accused submitted that, the notice was not served hence offences under section 138 of N.I.Act is not attracted and prayed for acquitted.
14. On perusal of the material on records Ex.P.1 is the disputed cheque, Ex.P.1(a) is the signature, Ex.P.2 is the Legal notice, Ex.P.3 is the postal receipt, Ex.P.4 legal notice, Ex.P.4(a) accused signature, Ex.P.5 is the complaint, Ex.P.5(a) is the 10 C.C.NO.10575/2003 SCCH-25 signature, Ex.P.6 is the board resolution, Ex.P.7 is the account opening form, Ex.P.7(a & b) is the signature, Ex.P.8 is the specimen signature, Exs.P.9 is the letter written by the accused to the bank, Ex.P.9(a) is the signature, Ex.P.10 is the form No. A & B, Ex.P.10(a) is the accused signature, Ex.P.11 is the letter from Maharashtra Govt. Ex.P.12 is the form No.60, Ex.P.12(a) is the signature & Ex.P.13 is the Bank extract, Ex.P.14 is the statement of accounts of the accused reveals that, the compliant before lodging the complaint had issued a notice to the Gnaneshwar Narayan Deshmukh, proprietor of Bharath Krishi Seva Kendra, Anjangao. It is admitted that, Ex.P.1 is belonging to the accused. The accused have committed signature appeared on Ex.P.1. PW.2 also identified the signature of the Pradeep and Gnaneshwar Deshmukh as per section 138 of N.I.Act read as under:
Dishonour of cheque for insufficiency, etc., of funds in the account. Where any cheque drawn by a person on an account maintained by him with a Substituted by Act 3 of 1951, S.3 and Sch., for "the States". Substituted, ibid, for "British India"
Substituted, ibid, for "out of British India".11
C.C.NO.10575/2003 SCCH-25 Substituted, ibid, for "in British India". The words "or the State of Jammu and Kashmir" omitted by Act 62 of 1956, S.2 and Sch.
Chap. XVII inserted by the Banking Public Financial Institutions and Negotiable Instruments Laws (amendment) Act, 1988 (66 of 1988) S.4 (w.e.f 1-4-1989) Banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that, it exceeds the amount arranged to be paid from that, account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for (a term which may be extended to two years) or with fine which may extend to twice the amount of the cheque, or with both:
Provided that, nothing contained in this section shall apply unless-
(a) The cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
(b) The payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, (within thirty days) of 12 C.C.NO.10575/2003 SCCH-25 the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) The drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
Explanation- For the purposes of this section, "debt or other liability' means a legally enforceable debt or other liability.
15. Here in this case the complainant has not issued a notice to the accused. It is mandatory on the part of the complainant before lodging the complaint. He shall issue a notice calling upon the alternative payment and weighted for 15 days, then offences u/s 138 is attracted. Mere admission of the issuance of the Ex.P.1 is not sufficient to attract an offences u/s 138 of N.I.Act. The complainant is utterly failed to prove in- accordance of u/s 138 of N.I.Act. The decision relied by the learned counsel for the complainant reported supra is not held to the case of the complainant. As a result I have answered point No.1 in the negative.
16. Point No.2:
In view of the observations made in the point No.1 the complainant failed to prove beyond reasonable doubt that, 13 C.C.NO.10575/2003 SCCH-25 accused have committed an offence punishable under section 138 of N.I.Act. As a result I proceed to pass the following:
ORDER Acting u/s. 255(1) of Cr.P.C. the complainant complaint is hereby dismissed.
No order has to cost.
(Dictated online to the Stenographer, corrected and then pronounced by me in open court on this the 28th day of February 2015) (DHARMAGIRI RAMASWAMY) XXI Addl.C.M.M.& XXIII ASCJ,Bangalore.
........
ANNEXURE Witnesses examined on behalf of the Complainant:
PW.1 : K.Thiagarajan (Ramesh Iyer) PW.2 : Sureshchandra Mohan lal Sharma Documents marked on behalf of the Complainant:
Ex.P.1 : Cheque
Ex.P.1(a) : Signature
Ex.P.2 : Legal notice,
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C.C.NO.10575/2003
SCCH-25
Ex.P.3 : Postal receipt,
Ex.P.4 : Legal notice
Ex.P.4(a) : Accused signature
Ex.P.5 : Complaint
Ex.P.5(a) : Signature
Ex.P.6 : Board resolution
Ex.P.7 : Account opening form
Ex.P.7(a & b): Signature
Ex.P.8 : Specimen signature
Exs.P.9 : Letter written by the accused to the bank
Ex.P.9(a) : Signature
Ex.P.10 : Form No. A & B
Ex.P.10(a) : Accused signature
Ex.P.11 : Letter from Maharashtra Govt.
Ex.P.12 : Form No.60
Ex.P.12(a) : Signature
Ex.P.13 : Bank extract
Ex.P.14 : Statement of accounts of the accused
Witnesses examined on behalf of the accused:
Ex.DW.1 : Pradeep Deshmukh Documents marked on behalf of the Accused:
Ex.D.1 : Sales Tax certificate
Ex.D.2 : Signatures
(DHARMAGIRI RAMASWAMY)
XXI Addl.C.M.M.& XXIII
ASCJ,Bangalore.